Report by Thomas Child concerning an act of the North Carolina General Assembly on quit rents

Child, Thomas, fl. 1745-1767

1755

Volume 05, Pages 456-461

To the Right Honourable the Lords Commissrs for Trade and Plantations.

Objections to the late North Carolina Quit rent Bill, passed in January 1755. by Mr Child Secretary to Earl Granville

The particular parts of the Bill objected to relate 1st to the subject matters of Distresses. 2ndly To such Commodities as are substituted for payment of Quit rents in the room of sterling or Proclamation money, which are the only alternatives reserved payable in the Grants of the Crown and of the Earl Granville. 3rdly to the means devised for procuring a general Registry. 4thly To the Disposition of Surplus Lands Upon particular Resurveys, and 5thly To the making 20 years possession an absolute Title and final Bar against the Crown and the Earl Granville.

As to the First Head, or that part of the Bill which makes Negro slaves distrainable only where no other sufficient distress can be had upon penalty of the officer's being liable to an Action and full Costs, etc.

It is necessary to premise, that one of the principal difficulties which formerly obstructed the collecting of Quit rents in this Province, was that of finding upon the premises any valuable goods or Chattels, that would answer the end and expence of making a Distress, such as could be found were base necessaries of the Tenant's own Fabrick, for which there were no Markets to carry them, nor Buyers since everyone made for himself or shifted from hand to mouth, and for that special reason it was, that the Act of 1715 (since repealed) was made, which vested the property of such goods taken by distress for Quit rents, or for Taxes, or in Execution for other Debts, in the Party for whom they were so taken, at their full appraised value, which soon put a stop to the Execution of distress Warrants, & of other like processes for common Debts, as they might thus have been discharged, under favour of the Act, with worthless Furniture or the Trumpery of a Plantation.

Afterwards as the people began to make up a purse (which was then not so difficult for them to do, since they were thus enabled by this Act

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to bid defiance to all their Creditors) they grew lazy and for the sake of indulging themselves thought of purchasing Negro slaves to do the work of their Plantations. But Negroes were a valuable property; and would fetch ready money in any part of America, and being Chattels or personal Estate, would become liable to be distrained for Quit rents. Therefore to prevent such an inconvenience, they made an Act in 1749 (since repealed) which exempted Slaves or Negroes, from being distrained, in case other sufficient distress was produced (the other sufficient distress here meant, was such useless and worthless goods or plantation furniture, as were specifically made legal payments of Quit rents, and of other Debts by the aforementioned Act of 1715) but this Act by reason of its qualifying and direction Clauses, which were productive of great Frauds and obstructions was repealed by His Majesty in April 1754, in virtue of which repeal Negro slaves are at this day become (and will continue to unless this last Bill should be confirmed) equally distrainable for Quit rents in this Province, as any other species of personal Estate whatsoever.

But by the Bill passed by Governor Dobbs, and now expecting his Majesty's confirmation, negro's are a second time exempted from distresses; (but note, from distresses for Quit rents only; and not for Taxes, nor are they protected against Debts due to one another; which proves the unjust partiality of the Bill,) or which would amount to the same thing, made distrainable only in Cases where other sufficient distress is not to be found upon the premises, upon penalty of the officer's being liable to an Action and full Costs. So that this Bill is not only an express Qualification of the Law, as it now stands with respect to Negros being the subject matter of distresses for Quit rents, but by reason of such negative clause, would be virtually a Rescission of it, since no officer could venture to make a distress under it, because of the formidable penalty he would be subject to, in case proof should be made that other sufficient distress was to be found upon some part of the Premises. the contrary of which such officer could not, in the nature of things, upon such extensive Tracts of many Thousand Acres that have no visible Boundary Lines from other Tracts, be actually sure of, and without such certainty, the risk & penalty are so great as would effectually deter any officer or other person from making a distress on Negro Slaves. Moreover in Case this Bill should be confirmed, the former Difficulty arising from the operation of the said Act of 1749, which had obstructed the collecting of Quit rents, would be now received, and as this Bill is not framed as a temporary one, that difficulty and Exemption might thereby be rendered perpetual.

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As to the 2nd Head, or that part of the Bill which makes Quit rents payable in Inspector's notes for Tobacco at a 1d per lb: or in indigo at 3d per lb. at certain times therein mentioned, there are 4 obvious & material objections to be made to it.

1st It controls that power which the Crown and His Lordships have Legally over their respective proprieties, by substituting those specifick payments of Quit rents in lieu of sterling, or (if the Tenants should please) of Proclamation Bills, which are the only two species of money that they have covenanted to pay their Quit rents in (one of which will always be in their purses, tho' the other should not) And also by the Bills appointing particular Days for those Payments being made, without any reference or regard to such as are stipulated in the Grants of the Crown and of his Lordship for that purpose.

2ndly It obliges the Crown and his Lordship to accept that species of payment which the Tenants shall elect to give them, so that in case it should happen, that the current or market price of Tobacco or Indigo should be under or lower than the price at which they are rated and invariably fixed by the Bill the Tenant having the entire Election, will for this reason be sure to fix upon that particular Commodity, whose market price shall so happen to be lower than its rated value, for payment of his Quit rents in, and the Crown and his Lordship would be nevertheless obliged by the Bill to receive it, at such full rated value, tho' to their manifest loss of 10 or more per cent.

3rdly It will depend as well on the Honesty as skill of such Inspectors, whether the Tobacco so to be paid for Quit rents, shall be really merchantable or not, and should they certify it as merchantable, the Crown and his Lordship would be bound to accept it at the full rated price, whether it was so or not, but indigo is not subjected to Inspection, & therefore they might be obliged to receive that Comodity in payment, without any Kind of ascertainment as to its quality or goodness, and should it be necessary to try an issue upon the point of such goodness, the question must be determined by a Jury composed of like Tenants who, not improbably might be in Confederacy with such Defaulters.

4thly These specifick payments, as directed by the Bill, will render the Estate of the Crown and of his Lordship a very precarious Kind of property, liable to all the fluctuations of merchandise, and to the trouble and risk which attend Traffick and in case the Crown or his Lordship should not choose to export such commodities or specifick payments as merchts upon their own Accounts, it would be impossible to dispose of 'em in the Country for the value at which they were rated and paid them, in pursuance of the Bill, because it must be supposed that if the market price

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should not be lower than such rated value the Tenant will not elect them to discharge his Quit rent with.

But note if there is such necessity, as would seem to be pretended by the Bill for paying Quit rents in Commodities, how comes it then that such Commodity's are not also made good payments for debts due to one another, which as the Law now is, are to be discharged with Gold, Silver or Proclamation Bills?

As to the 3rd Head; or that part of the Bill, which in order to procure a Complete rent roll, obliges the Crown's and his Lordship's Grantees to register their Title Deeds, upon penalty of forfeiting £10 proclamation (£7 10s Sterl.) to the Informer, in case of neglect or refusal, etc. As one of the Consequences, attending a general Registry of Title Deeds, would be the gaining a knowledge of the great Arrears of Quit rents due from particular persons, and by that means such persons might be compelled to discharge them; The alternative they have by this Bill “of subjecting themselves to an inconsiderable penalty only, for neglecting or refusing to register such Deeds” would be infinitely preferable, besides by once submitting to such penalty or forfeiture (which is not made toties quoties) the Act would be ultimately satisfied, and consequently no subsequent neglect or refusal to register could be afterwards imputed to them. And without a registry of such Title deeds no prosecution could be supported for the Arrears of Quit rents.

But this is not all, Their Case has been extended so far, as to prevent the Bills being ever put in Execution, for the onus probandi is laid upon the Informer, that is to say, it is incumbent on him to prove in order to support an Action for the Penalty, that “such a person has such a Title Deed to such particular Lands, which he neglects or refuses to register,” now to suppose an informer capable of proving this in cases of secret Frauds and neglects, as those are which should be the objects of the Bill, is supposing a Manifest absurdity.

By the Act of 1748 (since repealed) the Lands themselves were forfeited (in which Case it was only necessary to prove the Tenant's possession or Claim to such Lands and it was his Business to produce a Title Deed in order to save a forfeiture of 'em) And indeed it is only such a penalty that can enforce a general registry, and without a general registry, it will be impossible ever to procure a complete rent roll or make a fair Collection.

As to the 4th Head, or that part of the Bill which directs particular resurveys, and how, and to whom, surplus Land shall be granted out, etc. This is a very moderate attempt to disseize in Effect, the Crown and his Lordship of a considerable part of their proprieties, and to vest

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it in the legislature of the Province, or which is Tantamount, make the Alienation of it subject to the Rules and Direction of their own Assembly. For certainly the original Property of all Lands in North Carolina must be either in the Crown or in his Lordship, which as sole Fee-proprietors in their respective Divisions, they have an absolute independant right of granting out, to whom, upon what Terms, and in what manner they please, now surplus Lands are such extraordinary portions of Land as appears upon a resurvey, to be in the possession of their Tenants exceeding the just Quota's or Complements of their Grants, and are ever obtained either by original fraudulent Surveys, or by direct Disseizin. Consequently such ungranted surplusses, or exceedings can belong to no one, but either to the Crown or to his Lordship, and belonging solely to them, must be subject to their own rules and disposition only. Besides should this Clause be ever enacted into a Law, it will follow, that the best way to intitle themselves to Estates in North Carolina will be to take possession of more lands than shall be included within their Grants, because these Exceedings that shall appear upon a resurvey, coming under the notion of Surplus Lands, are adjudged by the Bill to the party, who had before so wrongfully possessed them, in case he shall choose to retain them, and that without taking out a new Grant, or paying anything by way of purchase money, for the property of such Exceedings.

As to the 5th Head, on that part of the Bill which makes 20 years possession of Lands upon proof thereof to be made before the Governor or Council etc etc, a sufficient Title and final Bar against the Crown and his Lordship etc.

This Clause which concerns one of the vital parts of our Constitution, namely the acquisition of property, is totally repugnant to the Laws and policy of the mother Country, and therefore not fit to be Enacted by any American Legislature.

By the Law of England 20 Years possession creates no Title to the property of Land, but forms a right to the bare possession only, the Dispossessed party having, notwithstanding such 20 years possession against him, real Actions to resort to, under which he may recover, and be restored to such dispossessed Estate.

Besides such 20 Years possession must be proved here to the satisfaction of a Jury, and be found by them in an Action depending between the proper parties, wherein the whole merits of the Case may be canvassed & exposed to the Court. But this Bill would make such length of possession an absolute Title to the Property, and a final Bar against the Crown and his Lordship without any furthur resort, and such possession may be proved in consequence of the Bill in a private, extrajudicial

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and partial way, without notice to them as Parties interested, and without being so found by a Jury, impanelled to try that particular issue between the parties (possessors) and his Majesty, or the said Earl, as the Case should be.

Nor can fairer proof be given, that this Clause was even considered as a particular Hardship that would be put upon the Crown and His Lordship than that its operation is confined to them only & not extended to any Cases of the same nature that might happen between themselves.

To conclude, should this Bill be passed into a Law, it is conceived, that its operation would prove greatly detrimental to the rights & Interests of the Crown, & to the Earl Granville's Property in North Carolina.